Citation Nr: 1041007 Decision Date: 11/01/10 Archive Date: 11/12/10 DOCKET NO. 05-04 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral shoulder disability, to include arthritis and tendonitis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Emily L. Tamlyn INTRODUCTION The Veteran served on active military duty from March 1962 to March 1964. This issue comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida, that denied service connection for right and left shoulder disabilities. In June 2006, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing has been associated with the file. In May 2007, the Board remanded several claims, including the current claim on appeal. The Veteran was given a VA examination of the shoulders as requested by the Board. The RO granted a total disability rating for individual unemployability in April 2010. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT A preponderance of the evidence is against a finding that a bilateral shoulder disability, to include arthritis and tendonitis, had its clinical onset in service or is otherwise related to active duty. CONCLUSION OF LAW Bilateral shoulder disability was not incurred or aggravated in service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A July 2004 letter satisfied the duty to notify the Veteran. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010). The agency of original jurisdiction notified the Veteran of information and evidence necessary to substantiate his claim for service connection. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The Veteran was not informed of how VA determines disability ratings or effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As discussed below, the Board finds that the evidence of record does not support a grant of service connection for a bilateral shoulder disability. In light of this denial, no effective date will be assigned. The Board finds that there can be no possibility of any prejudice to the appellant in proceeding with the issuance of a final decision of the claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2010). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and relevant medical records have been secured. The Veteran was given a VA examination in March 2010. A July 2001 statement to a state department of health and June 2001 letter from the Social Security Administration (SSA) show the Veteran applied for SSA benefits. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the Federal Circuit noted that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records, only those that are relevant and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz at 1321. In this instance, his statement is related to his already service- connected neck and low back disabilities and not to his current claim. The Board finds that the duties to notify and to assist have been met. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002). That an injury or disease occurred in service is not enough. There must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2010). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2009). The Board must also assess the credibility, and therefore the probative value of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Lay evidence stating that any event occurred does not have to be accepted unless documentary evidence can prove otherwise. Rather, the probative value of lay statements is to be weighed like all other evidence. Bardwell v. Shinseki, 24 Vet. App. 36 (2010). In his May 2004 claim, the Veteran stated: "...the condition of my shoulders was caused by the vehicle accident while on active duty." In April 2005, the Veteran stated in his notice of disagreement that his service treatment records showed he had pain in the trapezius muscle groups. January 2006 letters from the Veteran's current wife and ex-wife do not mention shoulder problems, but speak in general about the Veteran being in a car accident in service and his pain from disabilities stemming from that incident. At the June 2006 Board hearing, the Veteran's representative said the Veteran was told on active duty that his shoulder would come to bother him. (Transcript, p 12). He also said it appears that the etiology of the Veteran's shoulder problem was the accident. Id. The Veteran is currently service-connected for the residuals of cervical spine strain with arthritis (from March 1964), lumbosacral strain with traumatic arthritis (from June 2001), and adjustment disorder with mild depressed mood associated with his cervical spine strain (from May 2004). Service treatment records do document the Veteran was in a car accident. An October 1961 pre-induction examination was negative for shoulder problems. In July 1963, clinicians found the Veteran had strained his left trapezius after car accident. It was thought that he may have sustained an acute ligamentous tear which was irritated by his activities as a dentist. An October 1963 report of medical examination noted that the Veteran was recently hospitalized for an automobile accident and still had pain. There was no showing of shoulder or upper extremity disability. In a November 1963 service treatment record, an orthopedic record showed the Veteran still had pain in the right and upper portion of the trapezius of the neck. This situation was aggravated after working on patients in a dental chair. The symptoms could not be explained; X-rays were normal. He received a neurological examination the same month. This record states the Veteran was struck by a car from behind and knocked down. He complained of neck pain. He was "without associated extremity difficulties." The impression was no evidence of neurological symptoms. In a March 1964 report of medical history, the Veteran checked that he had a painful or trick shoulder or elbow. This painful shoulder was reported as due to trauma in the physician's summary. A clinical evaluation of the shoulder was normal. In a March 1964 record, a private doctor, Dr. Breck, stated the Veteran was going to have permanent neck pain. In May 1965, a VA examination showed the Veteran complained of pain at his neck and mid-back. An orthopedic examination was normal with only tenderness to palpation of the neck. The Veteran did not complain of shoulder pain. In June 2001, the Veteran reported aggravating his back 5 days prior "in a scuffle." In a February 2002 VA record, the Veteran reported no pain radiating to legs or arms. He said he retired as a dentist in the 1980s due to his neck and back problems. He had no history of extremity weakness or numbness. He was the main caretaker for his mother with Alzheimer's disease until she recently died. At a March 2002 VA spine examination, the Veteran described his in-service accident, where he was getting out of his parked car when another car hit his car from behind. He stated he had a neck fracture, although he was not certain where the fracture was. After the injury, the Veteran returned to a relatively normal and active lifestyle. He developed severe arm pain which worsened when his arms were elevated. He had to elevate his arms frequently during his job as a dentist. There was radiation of pain to the right arm greater than to the left arm. The examination report states the Veteran was an excellent golfer in the past, but could no longer play. Upon physical examination, the Veteran's strength in his upper extremities was 5/5 bilaterally. There was no abnormality noted. The examiner found the Veteran's current problems were linked to degenerative changes. In August 2002, the Veteran reported to VA urgent care complaining of right shoulder pain, along with pain in low back, neck and side. In October 2002, a VA neurosurgery record showed the Veteran had increasing neck pain with radicular radiation of pain to the right arm and shoulder. Pain was worse with head extension. An MRI revealed moderate degenerative joint disease with moderate canal stenosis. The impression was neck and right arm pain with cervical spondylosis. An addendum showed that it was determined the Veteran's shoulder pain was longstanding due to the Veteran's history of being a baseball pitcher in his youth. After the accident in 1963, the neck pain increased. There was pain in the right shoulder on a straight lift above the head with the palm up. The assessment was mild degenerative disc disease at C5/6 appearing to touch the spinal cord. In a January 2004 report of a VA examination of the spine, the Veteran had bilateral arm pain from his elbow to his shoulder in association with his neck pain. The examiner mentioned that during the course of the examination the Veteran appeared to put forth questionable effort. He had 4/5 strength in his upper extremities. He also had decreased sensation to light touch. An MRI of the whole skeleton from January 2004 showed minimal degenerative join disease in the cervical spine at C3 and C4 and degenerative joint disease in the knee areas. A January 2004 VA neurology record concluded that the Veteran's upper extremity symptoms were linked to his neck and low back. In March 2004, the Veteran was admitted for his chronic pain and decline in functional status. His discharge summary showed his primary diagnosis was chronic pain. His secondary diagnosis was debility secondary to chronic pain, cervical spondylosis with radiculopathy, chronic rotator cuff tendinopathy, polymyalgia rhematica and polyarthritis. A March 2004 record showed the Veteran was to undergo an MRI for his shoulders and noted that the Veteran was at high risk for rotator cuff tears due to his history of working as a dentist. A March 2004 VA orthopedic record showed the Veteran complained of bilateral shoulder pain, the right greater than left, since 1964. The symptoms were worse since September 2003 without injury or known provoking event. The Veteran described: "[v]ague localization of pain to posterior aspect of shoulders with radiation from deltoid down lateral aspect of arms ..." The pain was worse in the right arm. The Veteran reported being a baseball pitcher and being in a motor vehicle accident. The Veteran's service-connected disability to the cervical spine was noted. X-rays showed moderate arthropathy of the acromioclavicular joints bilaterally with articular narrowing and osteophyte formation. Both shoulders had a normal appearance with no mal-alignment, defects or deformities. There was no crepitus or contracture of the shoulders. The joints were intact without subluxation or laxity. There was no inflammation, erythema, eccymosis or induration. There was tenderness to palpation of the right shoulder greater than the left. The impression was to rule out rotator cuff tear or tendinopathy as the Veteran did have signs of impingement and some arthropathy on the X-ray. Another record confirmed tendinopathy of the right rotator cuff with a partial tear. The March 2004 VA MRI report showed findings consistent with supraspinus tendinopathy. X-rays of the bilateral shoulders showed degenerative changes within the acromioclavicular joint that were more pronounced on the left. In April 2004 a VA orthopedic record showed intermittent shoulder pain. The partial tear of the right rotator cuff was noted. Surgery was not recommended due to the Veteran's physical condition. In March 2010, the Veteran received a VA examination for his shoulders. The Veteran's claims file and medical records were reviewed. The Veteran stated he had a history of bilateral shoulder pain since 1963. He was involved in a motor vehicle accident. The Veteran said he was getting out of a vehicle and was thrown back into the car. He had bilateral shoulder pain ever since. There were no current treatments for this condition according to the Veteran. He also said there had no injuries as a baseball player prior to his entrance into service. The Veteran described impairment with his shoulders and said he does not do routine activities or chores and avoids use of the arms. The examiner reviewed the Veteran's service treatment records. She noticed the absence of shoulder complaints in 1963, the year following the Veteran's accident. It wasn't until the separation examination in March 1964 that the Veteran reported a "painful shoulder due to trauma." A general medical examination in 1965 also mentioned no shoulder concerns. The examiner saw that in 2002, the Veteran did report neck pain with radiation into the right shoulder and in March 2004 the Veteran was admitted for chronic pain and was noted to have chronic rotator cuff tendonitis. An August 2002 VA record showing radiation at both shoulders was inserted into the examination report. Also put into the report was a December 2003 addendum showing the Veteran said he had a history of a shoulder injury at 17 when pitching baseball. Physical examination showed that the Veteran had tenderness over the supraspinus tendon. His right shoulder was lower when compared to his left shoulder. Two X-rays were taken. Mild to moderate degenerative joint disease was present in both shoulders. The diagnoses included degenerative joint disease and tendonitis of the shoulders. The examiner first stated that the Veteran's bilateral shoulder condition was less likely as not secondary to his service- connected cervical spine condition. She explained that this was a separate condition that had no relationship to the degenerative joint disease and tendonitis of the bilateral shoulders. She clarified that the records showing radiation of pain into the arms was part of the cervical spine disability and that a cervical spine disability would not cause degenerative joint disease or tendonitis. The examiner also said that a complete review of the file does not document any chronic bilateral shoulder disability that existed since the Veteran's service. She related the Veteran's degenerative joint disease and tendonitis of the shoulders to the aging process and the Veteran's occupation as a dentist. The Board finds that service connection is not warranted for the bilateral shoulders. The Board affords the Veteran's statements regarding the chronicity of his shoulder disabilities less weight because the evidence shows a lack of consistency and plausibility, which are considerations for the Board. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board finds the Veteran competent to report he experienced pain in his shoulders since service. The Veteran may state what he actually experienced and experiencing pain is within his personal experience. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2) (2010). However, the Board must also assess credibility. A main inconsistency of the Veteran was highlighted by the March 2010 VA examination; the Veteran told the examiner he had no prior injury to his pitching arm before service, but a December 2003 VA addendum record reflects that the Veteran said at that time he had a history of a shoulder injury at 17 when pitching baseball. The Veteran's statements about an injury or lack of an injury show that he is inconsistent and diminishes his reliability as a historian. Caluza v. Brown, 7 Vet. App. 498 (1995). As a result, the Board assigns less weight to the Veteran's statements, especially his statement that his shoulders have been painful since his service. However, even if continuity of shoulder symptoms since service is conceded, a preponderance of the evidence weighs against the claim. The Board assigns a great deal of weight to the March 2010 VA examination report. The examiner detailed evidence in the claims file, examined the Veteran, reviewed diagnostic tests and interviewed the Veteran. Most of all, the examiner gave sound reasons for her opinion that the Veteran's bilateral shoulder tendonitis and arthritis were not related to service or to service-connected disability but instead were linked to the aging process and the Veteran's profession as a dentist. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non- precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). While the Veteran is competent to describe pain in his shoulders, it is not shown that he has the expertise to diagnose arthritis or other orthopedic disease. Even medical doctors rely on x-ray testing and other diagnostic tools to identify orthopedic disease. The Veteran is not competent to conclude that current shoulder pathology is related to his co The Veteran is not competent to conclude that current shoulder pathology is related to his complaints of shoulder pain since service. In this case, a clear preponderance of the evidence is against the Veteran's claim for service connection for a bilateral shoulder disability and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Service connection for a bilateral shoulder disability, to include arthritis and tendonitis, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs